If you’re looking for a new job, and stressing about your pre-employment drug test, you may be in luck: Employers are increasingly willing to hire employees who smoke pot. But you can still get fired for it — even if you’re a medical marijuana patient. Unless you live in Maine, in which case, go nuts: employers in Maine can no longer fire you for off-duty cannabis consumption, medical or not. (But even Maine residents shouldn’t breathe too easy: a new bill aims to make off-duty marijuana use a fireable offense in the state yet again.) It’s a confusing time, regardless of whether you’re stoned or not.
The Drug-Free Workplace Act was enacted in 1988, amid concerns about cocaine use. Before long, pre-employment drug tests were required at most large companies. By 2011, 57% of companies were requiring mandatory drug testing for all job applicants.
But lately, in the first major shift in workplace drug policies in thirty years, some large companies are removing marijuana from their pre-employment drug tests. In January, the largest US auto-dealer, AutoNation Inc., announced it would no longer disqualify job seekers who tested positive for pot. The Denver Post stopped testing for THC in 2016, as did a healthcare company based in Nevada with 6,000 employees.
Experts predict the trend will accelerate.
Employers say they’re struggling to fill positions, as unemployment rates have dropped. Faced with a dwindling pool of job-seekers, companies can no longer afford to exclude marijuana users from their workforce. And with recreational weed now legal in nine states plus Washington D.C., public attitudes are changing. An October Gallup poll indicated that 64% of Americans now believe marijuana should be legalized.
An AutoNation spokesperson told the Associated Press that the company had stopped testing for pot in response to both evolving public attitudes, as well as the tightening labor market.
There’s no definitive data on how many companies across the country are changing their policies. A 2017 survey indicated that seven percent of Colorado businesses had dropped marijuana from their pre-employment drug tests since 2014. (And only 62% of the businesses surveyed were still conducting drug tests at all, compared to 77% in 2014.)
But this 2017 survey had only received responses from 609 Colorado businesses, and the national data is hazier still. After AutoNation Inc. made their announcement in February, they were contacted by other business leaders who said their companies were doing the same thing — they just didn’t want to talk about it publicly.
“This is going to become the new don’t ask, don’t tell,” an employment lawyer told the Associated Press.
Most employers aren’t announcing their new pot-friendly policies, because they don’t want to appear soft on drugs — and marijuana is still federally illegal. (And Attorney General Jeff Sessions remains staunchly opposed to people smoking pot at all, whether they’re on the clock or not.)
Companies can also get a discount on their insurance if they maintain a “drug-free workplace,” which involves testing employees for cannabis. They could also be concerned about future workers’ compensation claims: if an insurance company can blame an accident on an employee’s possible marijuana use, they could refuse to cover the claim.
Of course, that’s a bigger concern in a factory than it is in an office, where the most dangerous hazard might be a stapler or an overworked cubicle-mate.
Finding employees who can pass drug tests is increasingly challenging. Many employers say it’s “the No. 1 reason they can’t hire enough workers,” according to The New York Times.
Failed drug tests reached record highs in 2017, according to Bloomberg. But that’s not all due to legalized pot. When the diagnostics company Quest analyzed ten million urine samples they’d tested for employers, they found meth and cocaine use up in 2017.
It’s unclear whether Quest’s urine analysis accurately captures national drug use trends because some employees simply won’t show up to take their drug test, if they know they’ll fail. There’s also an entire industry built to help helps job-seekers fool companies like Quest, with detox drinks and fake urine. A woman in Colorado was recently caught microwaving her urine on her way to take a drug test for a potential job.
Nevertheless, Quest still found an increase in marijuana use in 2017, especially in states where it’s legal — but also said that fewer companies were requesting marijuana tests anyway.
Even if you’re in a weed-friendly state, you can still be fired for your pot consumption. In 2015, the Colorado Supreme Court upheld a decision that Dish Network could legally fire a quadriplegic medical marijuana patient who used cannabis to treat his condition while he was off-duty. The case set a new legal precedent and was considered a big win for employers with strict zero-tolerance policies.
But in 2017, the Massachusetts Supreme Judicial Court set a very different precedent, when they ruled that a medical marijuana patient who had been fired for failing her drug test could sue her former employer for discrimination.
This year, in Colorado, a bill was proposed that would make it illegal for employers to fire employees solely for testing positive for marijuana. Advocates say the proposed legislation borrows from an existing City of Boulder ordinance, which reportedly prohibits firing employees for failing a drug test unless there’s evidence the employee was impaired at work.
And in February, Maine became the first state to protect employees from marijuana-based discrimination at work. The Maine Department of Labor removed marijuana from the list of substances employers could legally test for, and employees can no longer be fired — or not hired — simply for using pot in their off-time.
Not everyone in Maine is happy about the new law. Republican legislators have already introduced a bill to protect employers’ rights to fire employees for off-duty marijuana use. The bill is sponsored by state Senator Amy Volk, who explains that a couple years ago, at her husband’s packaging plant, supervisors found a bong — a “water pipe used for smoking marijuana,” Maine’s Press Herald explains.
To a marijuana user, this story is perplexing. These employees smuggled in a bong? There are so many easier ways to get stoned at work. (Many professionals use vape pens.)
But to Sen. Volk, the bong discovery was serious.
“We all know marijuana slows down your reflexes, your ability to think quickly on the job,” she said.
Regardless of any of any of these bills, people like truck drivers will still face random drug tests, even in Maine. Like pilots, certain professions simply can’t smoke weed. No one is advocating for those drug tests to disappear.
And some national companies still remain committed to testing all job applicants for pot, regardless of their position. At Burger King, you can rest assured that the person flipping your burger has passed a drug test that includes marijuana. (Unless you’re at a Burger King in Maine.)
But zero-tolerance companies like Burger King may face serious staffing shortages if unemployment numbers continue to drop. If they’re waiting for a signal from the federal government, they may not have to wait long: Last month, Labor Secretary Alexander Acosta suggested that employers take a “step back” on drug testing.
As employers hire increasing numbers of cannabis users, none of them have reported problems or decreased productivity.
“It’s not so obvious that drug screening is about productivity,” says Abigail Wozniak, a Notre Dame professor who has researched the topic. “It may be about finding workers who follow the rules.”
And these days, the rules can be hard to keep straight — regardless of whether you smoke pot.